Calls grow to revamp antiterror statute

Post-9/11 law called outmoded

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President Obama ordered the raid on Osama bin Laden at this hideout in Pakistan. The scope of the war on terrorism and presidential authority has come under new scrutiny.

By Bryan Bender
Globe Staff
February 11, 2013

WASHINGTON — The 2001 vote in Congress to go to war against Al Qaeda and the Taliban in Afghanistan has become obsolete in the face of new threats, and the law should be reconsidered, according to a politically diverse range of lawmakers, diplomats, and international legal experts.

The Authorization to Use Military Force, approved three days after the Sept. 11, 2001 attacks, gave the president authority to “use all necessary and appropriate force against those nations, organizations, or persons” that “planned, authorized, committed, or aided the terrorist attacks.”

But as antiterror operations expand in places such as Mali, Somalia, and Yemen, a rare bipartisan coalition is advocating that Congress apply a new set of checks on President Obama, who like President George W. Bush has used the 2001 law to justify drone attacks and other counterterrorism operations across the Islamic world.

The scope of the war on terrorism and the president’s authority to wage it has come under new scrutiny in recent days. A Justice Department white paper, first reported last week by NBC News, asserted the president has the authority to order the targeted killing of American citizens believed to be senior operatives of Al Qaeda or an affiliated group. The position paper has been widely criticized by members of both parties and human rights groups who assert it violates the law.

“There is a growing gap between the threats posed by Islamist terrorist groups and the president’s legal authority to meet the threats under the [Authorization to Use Military Force],” Jack Goldsmith, a Harvard law professor who served as top legal adviser in the Bush administration, recently wrote in a paper published by the conservative Hoover Institution at Stanford University.

“Many of these groups . . . have no direct links to Al Qaeda and unclear ones to Al Qaeda affiliates.”

Goldsmith believes that “a major challenge for the second-term Obama administration is whether and how to supplement or replace” the 2001 law.

On the other side of the political divide are voices such as Jane Harman of California, a Democrat and former representative who served on the Intelligence and Homeland Security Committees before resigning in 2011 to run the Woodrow Wilson Center, a Washington think tank.

“When I voted for it I thought it was limited in time and place,” Harman said in an interview. “It was the right thing to do to respond to the people who attacked us, primarily in Afghanistan. I don’t think anyone who voted for it envisioned it would be in force 12 years later.”

The growing skepticism was also on display at the confirmation hearing of John Brennan to be director of the CIA. Brennan, a top White House counterterrorism official the Obama and Bush administrations, faced a barrage of questions over the drone program and its legal justification.

“We only take such actions as a last resort, to save lives when there is no other alternative,” he told the Senate Intelligence Committee.

Meanwhile, Senator Bob Corker, a top Republican on the Foreign Relations Committee, told Yahoo! News that he has concerns about the legality of targeting suspected terrorist leaders, especially American citizens — a process that is almost entirely out of public view.

“Even the most hawkish American has to have some degree of concern,” Corker said.

Liberal voices say the 2001 law is simply too open-ended and that more specific congressional guidelines are needed.

“It is time to revisit and get rid of it,” said Zeke Johnson, director of the Security with Human Rights Campaign at Amnesty International. “The global war paradigm introduced by the Bush administration and carried over by the Obama administration treats the whole world as a battlefield.”

The White House did not immediately respond to a request to comment on whether it believes a new congressional vote to authorize the war on terrorism is needed.

But the Obama administration, like the Bush White House before it, has used the 2001 law to justify a growing number of counter-terrorism operations, from drone strikes to indefinite detentions of terrorism suspects — all while insisting it does not need congressional authorization in the first place to use military force.

The War Powers Resolution, passed in 1973, requires the president to notify Congress within 48 hours of launching military operations. The law, passed in the wake of the Vietnam war, also requires the president to seek a congressional authorization — or an outright declaration of war — if those forces are engaged beyond 60 days.

But the 1973 law has been labeled unconstitutional by successive presidents and for the most part has been ignored, though the Iraq wars in 1991 and 2003 were approved by Congress in votes that were seen as politically necessary.

But now there is growing concern that because the war on terrorism has changed so much, both in nature and geography, that Congress — which is designated by the Constitution the authority to declare war — should reevaluate the threat and the legal parameters of conflict.

A lengthy brief published by the left-leaning American Constitution Society for Law and Policy, a nonprofit that promotes “the vitality of the US Constitution and the values it expresses,” last week called for a new legislative framework to replace the outdated 2001 legislation that authorized the use of military force.

“While a range of operations have been included under the umbrella of defeating core Al Qaeda, the group directly responsible for 9/11, it also covered operations directed at its affiliates and sympathizers that have only loose connections but no direct link to 9/11,” P.J. Crowley, a retired Air Force colonel and former assistant secretary of state, wrote in the new paper. “An indefinite extension of the existing [congressional authorization] advances the prospect that the United States will be engaged in a state of indefinite war, with significant powers permanently in the hands of the executive branch.”

Predicting that “homeland security, law enforcement, diplomacy, and the intelligence community will take on greater significance, with the military playing a supporting role,” he wrote that a new congressional authorization “should require renewal periodically.”

In an interview, Crowley said that “we’ve probably had the last war that has an official beginning and end. The challenge going forward is to keep a close eye on how conflicts affect populations overseas and how we keep our own population engaged.”

But some worry that Congress, which is so divided on the issues, might make things worse.

“It is an open question whether Congress could actually come to agreement on a new legal framework given the incredible disparity of views within that body,” said Ambassador Daniel Benjamin, who served as the State Department’s coordinator for counterterrorism from 2009 to 2012.

“It is very hard for me to imagine those who want an untrammeled military acting around the world in essentially a global battles pace compromising with those who want to see a rigorous set of rules on these activities,” said Benjamin, who now runs the Dickey Center for International Understanding at Dartmouth College.

Harman, too, worries that America is engaged in an open-ended war with little congressional oversight but doubts that a “toxically partisan” Congress is up to the task of reining it in.

“The goal is not to enact a blank check or prevent counterterrorism policy, but create an improved and careful statute,” she said.

“It is the right thing to do but given the difference between the parties I am not sure where it will lead.”

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